Sharon E. Pandak Andrew A. Gore
Greehan, Taves, Pandak & Stoner, PLLC
www.gtpslaw.com ü 1
Lucas v. South Carolina Coastal Commission,
505 U.S. 1003 (1992)
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Lucas – Background Facts � 1986 -‐ Lucas purchased two residential lots for $975,000 on Isle of Palms in South Carolina
� Intended to build single family residential dwellings
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Lucas – State Regula5on � 1988 – South Carolina Legislature adopts Beachfront Management Act
� Purpose of Act was to preserve South Carolina’s beaches; Legislature found that new construction erosion in a coastal zone threatened this public resource.
� Barred Lucas from erecting any permanent habitable structures on his parcels
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What is a Regulatory Taking? � “[W]hile property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
� Extension of protections of Takings Clause of the 5th Amendment beyond direct appropriation of property (i.e., condemnation).
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Lucas -‐ Holding
� Total Takings -‐ Created new rule that regulation constitutes a per se taking if it prohibits “all economically beneficial uses” of a property.
� Established “categorical” taking, in contrast to pre-‐existing “ad hoc, factual inquiry” for regulatory taking determinations (See Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978))
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Lucas -‐ Remanded � Trial court found that Act “deprived Lucas of any reasonable economic use of the lots,” but that such a deprivation was not compensable.
� SCT remanded the case to determine whether any “background principles” constituted existing restrictions on property such that compensation was not required.
� Does “the nature of the owner’s estate show[] that the proscribed use interests were not part of his title to begin with”?
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Lucas -‐ “Background Principles” Defense � Compensation for total taking not necessarily required if landowner had no expectation of right due to “background principles” of law.
� What is “the content of, and the State’s power over, the “bundle of rights” that [a landowner] acquire[s] when they obtain title to property?”
� E.g., a landowner would not expect to be permitted to fill a lake if it would flood other properties, thus, no compensation is required for restricting such behavior.
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Lucas -‐ “Background Principles” Defense Examples of possible applicable “backgroundprinciples”: � Public or private nuisance � Previously existing statutory law � Public necessity, e.g., emergencies � Public trust doctrine
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“Today, the Court launches a missile to kill a mouse.”
- Justice Blackmun, dissenting, in reference to the establishment of the total
takings rule.
WOULD REBUILDING RESTRICTIONS AFTER A STORM EVENT RESULT IN A “TOTAL ECONOMIC WIPEOUT” AND CONSTITUTE A “TAKING”?
Not necessarily. . . .
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Relevant Concepts � Lucas decision speaks to what constitutes a total take such as to trigger a per se right to compensation.
� But consider the remaining uses that are permitted – if there is an economic use – Lucas is not a barrier
� “Bundle of rights” – one stick left does not = a total taking under Lucas.
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Chilling Effect of Lucas � Since Lucas – more likely for people to raise issue of “takings”
� This has caused a chilling effect on policy-‐making
� Coupled with claims of “violation” of the Dillon Rule – Virginia decision-‐makers may feel hamstrung
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However, if not a total take: � Total takings rule applies in few circumstances
� Justices even express doubt that facts of Lucas necessarily constitute a total taking (had Trial Court not found otherwise – issue not appealed)
� E.g., temporary moratoria on development not a Lucas taking, see Tahoe-‐Sierra Preservation Council, Inc. v. Tahoe Regional Planning Council, 535 U.S. 302 (2002).
� If not total taking, “ad hoc, factual inquiry” is required to determine if regulation constitutes a regulatory taking. See Penn Central.
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Penn Central factors: � Whether a restriction constitutes a taking “depends largely upon the particular circumstances [in that] case.”
� Factors considered include: § Economic impact on owner § Interference with distinct “investment-‐backed expectations.” This is somewhat akin to “background principles” defenses.
§ Character of governmental action
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Consider: � Purpose of regulation – instead of preservation of beaches (Lucas)– maybe public safety or other nuisance protection purpose (and make the regulation part of a comprehensive program)
� Effect of regulation – result is to protect public health, safety and welfare – in VA both a goal of general police power and zoning specifically (no Dillon Rule issue)
� Not a total take -‐ remember bundle of rights – allow at least one to remain (not Lucas)
� Compliance with other requirements-‐ E.g., Rough proportionality and essential nexus requirements met
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Few cases in Virginia in which the Courts have found a total take or ordered compensation for landowners for a regulatory taking.
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Virginia Regulatory Takings Cases Virginia Courts found no regulatory takings in the following cases:
� Board of Supervisors of Prince William County v. Omni Homes, Inc., 253 Va. 59 (1997) – no regulatory taking under Penn Central test because: 1) access by road was a risk, not investment-‐backed expectation, 2) economic impact not significant because access could not be assumed in initial valuation
� Board of Sup’vrs of Culpeper Cnty. v. Greengael, L.L.C., 271 Va. 266 (2006) –reasonable investment-‐backed expectation would include understanding of risk of acquisition of water and sewer, therefore, not a regulatory taking
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Addi5onal Virginia Regulatory Taking Cases: � Front Royal Indust. Park Corp. v. Town of Front Royal, 135 F.3d 275 (4th Cir. 1998) -‐ mere diminution in value does not constitute partial taking
� City of Virginia Beach v. Bell, 255 Va. 395 (1998) – no Lucas taking in the denial of a permit under the Sand Dune Protection Act because the landowner acquired the property after the regulation became effective
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Examples of Current Virginia Regula5ons:
� Chesapeake Bay Preservation Area limitations: §§ 62.1-‐44.15:74, et seq., VA Code Ann.
� Wetlands limitations: §§ 62.1-‐44.15:20 et seq.; 28.2-‐1300, et seq., VA Code Ann.
� Floodplain limitations: §§ 10.1-‐600, et seq., VA Code Ann. and federal law
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Conclusion: � Decision-‐makers can choose to pay for large numbers of easements or acquisition of substantial land because of fear, or
� Think creatively, this requires: -‐ careful development of policies and
regulations -‐ willingness to accept some risk of
litigation -‐ demonstration of necessity to public and public acceptance
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Sharon E. Pandak Andrew A. Gore
Greehan, Taves, Pandak & Stoner, PLLC
www.gtpslaw.com ü 22